Court of Cassation: A generic Model 231? Judicial oversight put on hold
The lack of specificity renders the measure inapplicable to the Srl. A mere assertion of the independence of the supervisory bodies is not sufficient
The lack of substance in the Organisational Model 231 means that judicial review is not available to a limited liability company suspected of being heavily infiltrated by organised crime. This is emphasised by the Court of Cassation in judgement no. 31505 of the First Criminal Section.
The Court of Appeal
A key factor in the Court of Appeal’s decision – which had dismissed the appeal against the refusal to grant voluntary supervision – was the assessment of Model 231 adopted by the company. The judges considered that the organisational model precluded a positive prognosis regarding the company’s ability to be brought into compliance. The model submitted, in fact, as the judges observed, was blank, lacking data and precise, specific obligations, particularly regarding the criteria for selecting business partners, to avoid entering into relationships with companies subject to prohibitory measures; shortcomings were also identified regarding the supervision of the director’s conduct, the criteria for appointing supervisory bodies and their powers, as well as the actual establishment of a supervisory body.
However, in the defence’s view, the model was fully in line with the prescribed standards and, in particular, with regard to the supervisory body , its powers and requirements were clearly set out, as well as its independence from the director and the shareholders.
The Court of Cassation
The Court of Cassation points out, first of all, that the judicial supervision of a company, as provided for in Article 34-bis of Legislative Decree 159/2011, is based on the premise that the company has been subject to an anti-Mafia disqualification order, has challenged that order, and the court considers that the activity of aiding the Mafia attributed to the company is occasional and capable of being rectified, or that any possibility of Mafia infiltration can be eliminated.
The company concerned may request to be subject to supervision whilst an appeal against the disqualification order is pending, in order to continue its activities with a view to its full return to the free market as a sound company.
